Docket: IMM-1843-17
Citation:
2017 FC 867
Ottawa, Ontario, September 29, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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DWAYNE WINSTON
GAYLE
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review by
Dwayne Winston Gayle [the Applicant] pursuant to s. 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision made by
Senior Immigration Officer [the Officer], dated March 13, 2017, in which the
Officer refused to grant the Applicant’s claim for permanent residency on
humanitarian and compassionate [H&C] grounds [H&C Application].
II.
Background
A.
Preliminary Issue
[2]
The Style of Cause lists the Respondent as the
Minister of Immigration, Refugees and Citizenship. Although this is the new
name for this Minister and Department, the proper legal name for the Respondent
before the Federal Court is the Minister of Citizenship and Immigration. Accordingly,
the style of cause is hereby amended to change the Respondent to be “The Minister of Citizenship and Immigration”.
[3]
The Applicant is a citizen of Jamaica having
been born in Jamaica on January 21, 1985.
[4]
The Applicant came to Canada at the age of two
with his mother Charmaine Gayle who was sponsored by the Applicant’s father,
Winston Gayle, on July 15, 1987, who was landed as a Permanent Resident of
Canada and has been in Canada since that time.
[5]
The Applicant grew up living with his father and
his brother, as his mother left them due to addiction issues. Having grown up
without a mother and having insufficient parental guidance, the Applicant, like
his mother, also abused drugs and alcohol.
[6]
The Applicant reconciled with his mother 12
years ago and now lives with her and his nephew Janoy Gayle (4 years old), who
are both Canadian Citizens. The Applicant is currently seeking and obtaining
treatment from the Centre for Addiction and Mental Health in Toronto.
[7]
The Applicant has one son, Wesley Gayle, born in
2006, from a previous relationship with Deborah Grenier. At the time of his
application, Wesley was residing with the Applicant as primary caregiver, although
Wesley no longer resides with the Applicant. The Applicant states that he
continues to have a close relationship to Wesley, being involved in his
everyday life and providing financial and emotional support.
[8]
The Applicant also has one daughter, Zaniah
Gayle, born in 2014, from his ongoing relationship with Sheriece Jackson. The
Applicant and Ms. Jackson are also expecting a second child. Ms. Jackson is his
common-law partner and in her letter of support for the H&C Application she
states that she is his fiancée. The Applicant states that they plan to live
together, however he cannot do so at present as Ms. Jackson is in subsidised
housing and they are hesitant to move in together in a new place for fear of
the Applicant being removed from Canada and Ms. Jackson then being unable to
afford rent in a non-subsidised location. Ms. Jackson also has two other
daughters (ages 9 & 13) with whom the Applicant is close, as their father
was removed to Jamaica.
[9]
Although the Applicant and Ms. Jackson are
living apart, the Applicant spends a great deal of time with his daughter and
Ms. Jackson’s two other daughters. The Applicant says he is their “father figure”, that “they
are dependent on [him]” and that he “provide[s]
them with emotional and financial support”.
[10]
The Applicant has been employed as a car
detailer at the Richmond Hill Toyota since November 11, 2015 and states that he
is an active member of his church.
[11]
The Applicant’s grandmother who lived in Jamaica
and passed away in 2012 was the only person in Jamaica upon whom he could have
relied on for support in his reestablishment return to Jamaica.
[12]
On September 12, 2012, the Applicant was
convicted of assault causing bodily harm and sentenced to 1 day of jail, 139
days of pre-sentence custody, a 2 year probation order, a DNA order as a
primary offence, and a 10 year prohibition/seizure order.
[13]
The offence involved Ms. Jackson (the mother of
his second child) resulting in her losing her front teeth. There is
disagreement with what actually occurred, what was plead to in court, and what
was in the police report. Ms. Jackson testified before the Immigration Appeal
Division [IAD] hearing stating that she fell and knocked them out on the table,
while the Applicant said it had been his hand (in self-defence) at the IAD, and
his elbow (accidentally) in earlier written submissions. At the IAD, the
tribunal member accepted the police report evidence (that the Applicant knocked
her teeth out with one hard hit to the mouth because she had asked him to pack
up and not stay there, and that he had also choked and slapped her) over the
testimony of the Applicant and his witness.
[14]
Prior to this offence the Applicant had a
lengthy record of six convictions, including flight and theft over $5000;
assault, break and enter and theft, failure to comply with an undertaking and
resisting, and obstructing an officer and failure to comply with recognisance.
[15]
As a result of his 2012 assault causing bodily
harm conviction, the Applicant was reported under section 44(1) of the IRPA on
November 6, 2012, and on March 16, 2013, his case was reviewed by Canada
Boarder Services Agency and recommended for an admissibility hearing. The case
was then referred under section 44(2) of the IRPA to the Immigration Division
[ID] and an oral admissibility hearing occurred on May 14, 2013, after which a
removal order was granted against the Applicant as he was found inadmissible
under section 36(1)(a) of the IRPA.
[16]
The Applicant appealed this removal order to the
IAD and was represented by counsel at the hearing (on September 28, 2015 and
January 21, 2016).
[17]
At the IAD hearing, the Applicant’s counsel did
not challenge the validity of the removal order but made submissions that the
Applicant should be permitted to stay in Canada for H&C grounds, including
the best interests of his children [BIOC]. On February 29, 2016, the IAD’s
decision held that the Applicant had not established sufficient H&C
considerations, also taking into account the BIOC, to warrant special relief.
As part of this decision, the tribunal member considered the following:
- The seriousness of the Applicant’s past
offences and possibility of rehabilitation (finding that the Applicant
downplays and minimizes his responsibility);
- The establishment of the Applicant in
Canada (finding that this was a neutral factor as although he had been in
Canada a very long time he had given insufficient evidence of employment
etc.);
- The potential hardship faced on return to
Jamaica (finding that this was a neutral factor as although there may be
gun violence and “he would miss his children”
the tribunal member did not find sufficient evidence to support a lack of
community assistance and stated the dislocation would be “no greater than any long-term resident of Canada making
such a move”);
- Family ties to Canada (finding that this
did not favour the Applicant as his parents did not provide supporting
letters or act as witnesses, that he was living with family members when
he committed some of the criminal offences, and that there was
insufficient evidence that his mother, children or girlfriend were
dependent on him);
- BIOC (finding that “it is not in his children’s best interest to be exposed
to his behaviour or to establish a closer bond with their father only to
have him imprisoned for future criminal offences and/or be removed from
Canada” and “that the greater interests of
Canadians for safety must trump the best interests of a child in this
case”).
[18]
As a result, the IAD upheld the removal order and
the IAD Decision was not appealed.
[19]
The Applicant also submitted a request for a
Pre-Removal Risk Assessment [PRRA], which was refused. That decision was also
not appealed.
[20]
While the PRRA decision was not included in the Certified
Tribunal Record [CTR], the Officer specifically references the reasons from the
PRRA as the basis for refusing one of the Applicant’s arguments, that due to
relatives who had been killed in Jamaica in violent past attacks, he is at risk
and will experience hardship on return to Jamaica.
[21]
After the IAD Decision, the Applicant’s representative
filed an application based on H&C grounds on April 28, 2016. It is the
decision on this H&C Application that is under review.
[22]
The Officer considered the Applicant’s family
members/dependants, being the Applicant’s father and mother, the Applicant’s
two children and the Applicant’s brother. The Officer found that the factors to
be considered in the H&C, as expressed by the Applicant, were degree of
establishment, BIOC and hardship of returning to Jamaica.
(1)
Establishment
[23]
Letters of support from the Applicant’s parents,
his cousin Karaine, his son Wesley, the mother of his first child, the mother
of his youngest child, and his Pastor were considered.
[24]
The Officer acknowledged that the Applicant has
attained a level of establishment through education, employment, and friends
and considered these as positive factors. The Officer found that the although
the Applicant has family in Canada, his mother’s letter of support focuses on
the Applicant’s past and concerns about his future if returned to Jamaica and
does not detail the nature of their relationship. For this reason, the Officer was
not satisfied that the relationships in Canada are sufficiently close in nature
and that the relationships could continue by other methods (telephone, mail and
electronically) if he were to return to Jamaica.
(2)
Best Interests of the Child [BIOC]
[25]
The Officer noted that although the Applicant
has his son Wesley’s address as his own on the application, the Applicant only
provided a copy of an not completely filled out letter he says he submitted to
the school and no proof from the school or from Wesley’s mother, whose letter
made no mention of Wesley living with his father. The letter was recognised by
the Officer to show that the Applicant assists in picking up Wesley from school
and providing medications, shoes, groceries and clothes for Wesley. The Officer
also noted Wesley’s letter and “acknowledge[s] that
Wesley loves his father and does not want to see him leave”.
[26]
Little evidence was provided with respect to the
Applicant’s daughter, to show the extent of the Applicant’s involvement in her
life other than that he plays some part. The Officer did note that a letter
from Ms. Jackson mentions that the Applicant provides his daughter, and her
step-sisters, transportation to school, preparing meals, assisting with
homework and acting as a father figure. The Officer then appears to discount
the letter, as Ms. Jackson calls herself a fiancée in one part and a
single-mother in another part, as well as confirming that they do not live
together.
[27]
The Officer found that although the Applicant
plays “some role” in the children’s lives, the
evidence presented is insufficient to show the extent of this role.
[28]
The Officer also held there was little
information provided to show that other mediums of communication (phone, mail,
email) would not allow the Applicant and his family in Canada to remain in contact
and maintain a relationship if returned to Jamaica.
[29]
The Officer did accept that the Applicant loves
his children and that both the Applicant and the children will experience
emotional hardship if separated.
(3)
Risk and Adverse Country Conditions
[30]
The Applicant raised the same risk in this
H&C application as he did in his PRRA, namely the murder of three family
members in Jamaica. As the Officer was the same officer who refused the PRRA,
the Officer found, as he did in the PRRA, that although Jamaica has high crime
and gang violence rates there was little objective evidence of the Applicant being
targeted due to his familial relationship to the murdered men. For this reason,
the Officer did not consider this a hardship.
[31]
The Officer also did not accept that the
Applicant will face hardship through widespread unemployment or lack of
assistance in survival, solely due to him not having connections in Jamaica. His
work experience in Canada would assist him in finding work on return to
Jamaica.
(4)
Other Considerations
[32]
The Officer also noted the history of
convictions the Applicant has as both a youth and adult, and the fact that the
IAD found the Applicant did not take responsibility for his actions and instead
minimized his culpability.
(5)
Overall Decision
[33]
Having considered the above issues, the Officer,
although noting the love between the Applicant and his children and that he
provides “some level of care”, found that the BIOC
was not sufficient on its own to warrant the exercise of an H&C exemption,
given the Applicant’s past criminal activity.
[34]
The Officer also accepted that although there
will be a period of economic and social adjustment for the Applicant on return
to Jamaica which may lead to some hardship, such hardship does not rise to the
level where an H&C exemption is warranted.
[35]
For these reasons, the Officer refused the
H&C Application on March 13, 2017.
III.
Issues
[36]
The issues are:
- Was the
Officer’s BIOC analysis reasonable?
- Was the
Officer’s assessment of potential hardship on return to Jamaica, family
ties and the Applicant’s criminality reasonable?
IV.
Standard of Review
[37]
The standard of review of an Officer’s decision
to refuse the Applicant’s H&C application is reasonableness.
V.
Analysis
A.
Preliminary Issue
[38]
The Respondent correctly points out that the
proper Respondent shall be the Minister of Citizenship and Immigration and the
style of cause is hereby amended to name the Respondent as the Minister of
Citizenship and Immigration effective immediately.
B.
Was the Officer’s BIOC analysis reasonable?
[39]
Section 25 of the IRPA authorizes the Minister
to facilitate an individual’s admission to Canada or exempt an individual from
any applicable criteria or obligation under the IRPA, where the Minister is
satisfied that such exemption or facilitation is justified given humanitarian
or compassionate considerations.
[40]
An H&C review entails consideration of
special and additional circumstances to provide an exemption from Canadian
immigration laws which would otherwise be applied. That remains the case after
the Supreme Court of Canada decision in Kanthasamy (Liang v Canada
(MCI), 2017 FC 287 (Liang); Kanthasamy v Canada (MCI), 2015
SCC 61 at para 41 (Kanthasamy)).
[41]
The Applicant submits the Officer used the wrong
test and that although the Officer did not use the exact words of “undue, undeserved or disproportionate hardship,” it
was a hardship test the Officer undertook instead of a best interests test.
When one purposively construes the reasoning of the majority decision in Kanthasamy,
it is equitable relief in light of the substantive consideration and weighing
of all the relevant facts and factors before the decision maker (Kanthasamy,
at paras 21, 25). The Court should consider the Chirwa test as
co-extensive with the Guidelines (Kanthasamy, at paras 30-31).
[42]
The Applicant also states the Officer ignored or
misconstrued evidence, as although there were letters from the Applicant’s son,
and the mothers of both of the Applicant’s children, the Officer, in
recognising that “the [A]pplicant plays “some role” in
their lives, [stated that] the extent of that role has not been demonstrated though
the submissions presented”.
[43]
Finally, the Applicant also submits that the
Officer both minimized the BIOC and was not alert, alive, and sensitive to the
children’s interests. The Applicant argues that the evidence clearly
demonstrated the Applicant had a very close relationship with the children and
all the Officer did was pay “lip service” to the
BIOC.
[44]
I find that the Officer’s reasons show that the
Officer did not apply the unusual, undeserved or disproportionate hardship
test, contrary to the Applicant’s assertion, but rather did consider hardship
as required. Moreover, the Officer did not minimize the children’s interests or
misunderstand or ignore the evidence considered with respect to the children.
So long as an officer appropriately appreciates the child’s circumstances as a
whole and gives significant weight to the best interests of the child, the
H&C decision will be reasonable (Kanthasamy, at paras 41, 60).
[45]
The case of Liang, above, aptly review,
the impact of the Supreme Court’s decision in Kanthasamy:
24 In Kanthasamy,
the Supreme Court of Canada summarized the principles that are to guide an
Officer's discretion in granting an H&C application. It also stated that
there will inevitably be some hardship associated with being required to leave
Canada, however, this alone will generally not be sufficient to warrant relief
on H&C grounds (at para 23). What will warrant relief under s 25(1) will
vary depending on the facts and context of each case and officers making such
decisions must substantively consider and weigh all of the relevant facts and
factors before them (Kanthasamy at paras 25 and 33; also see Marshall
v Canada (Citizenship and Immigration), 2017 FC 72 at para 33). The Supreme
Court of Canada also revisited the best interests of the child analysis
required by s 25(1) finding that officers must be alert, alive and sensitive to
the best interest of the child, afford them significant weight, examine them in
light of all of the evidence, and take into account the context of the child's
personal circumstances (Kanthasamy at paras 23-27 and 35-39).
25 In this
matter, the Applicants primarily take issue with the Officer's H&C analysis
on the basis that the Officer did not take into consideration the impact that
the pending re-determination by the RPD of the Female Applicant's claim will
have on the hardship analysis. In that regard, they submit that Kanthasamy
is significant because it imposes a broader test, in that all relevant factors
must be considered by an H&C officer, and the outstanding RPD
re-determination was such a factor. Further, because the Kanthasamy
best interest of the child analysis confirms that there should be no hardship
to children.
26 On the
latter point, I do not agree with the Applicants that Kanthasamy stands
for the proposition that the analysis of hardship does not form part of the
best interest of the child analysis or that any degree of hardship to a child
would necessitate a positive H&C determination. In Estaphane v
Canada (Citizenship and Immigration), 2016 FC 851, Justice Southcott stated
that Kanthasamy prohibits employing the threshold of "unusual and
undeserved hardship" in considering the best interests of a child, in
effect, thereby requiring demonstration that the hardship imposed on a child
reaches a certain level. However, that Kanthasamy does not prohibit
consideration of hardship that a child may face as a result of circumstances
under consideration. In fact, often such hardship that is argued by an
applicant to support a particular result being in the best interests of a child
(at para 34).
[Emphasis added]
See also Nguyen v Canada (Minister of
Citizenship and Immigration), 2017 FC 27 (Nguyen) at paras
27-28; Zlotosz v Canada (Minister of Citizenship and Immigration), 2017
FC 724 at paras 20-21).
[46]
Moreover, the Officer considered the Applicant’s
involvement with the children as set out in the letters and submissions on the
record. It is not the Court’s role to reweigh the evidence. The Officer did not
discount that evidence and found that there was insufficient evidence to
conclude that the best interests of the children were such that the application
should be granted, notwithstanding the relevant other factors, including the
Applicant’s criminality.
[47]
I also find that the Officer did not minimize
the children’s interest when he found that little evidence had been presented
to indicate that his relationship with the children would terminate upon his
departure or that he would not be able to maintain telephone, mail and internet
contact with his children and continue to further their relationship. While it
is certainly not ideal to have a long distance relationship with a child at any
time or for any reason, the inherent hardship that results was reasonably
considered by the Officer.
[48]
The question for the Court is whether the
officer is alert, alive and sensitive to the child’s best interests. In this
case, the Officer addressed the concerns and information put forward by the
Applicant and was alert, alive and sensitive to the best interests. The Officer’s
decision was reasonable (Nguyen, above at paras 22-25).
C.
Was the Officer’s assessment of potential
hardship on return to Jamaica, family ties and the Applicant’s criminality
reasonable?
[49]
The Applicant argues that the Officer erred by
holding that she would not be considering the same risk as presented in the
PRRA, when the Officer should have nevertheless considered the potential
hardship of Jamaica’s violence and discrimination towards someone who would be
considered a foreigner.
[50]
The Applicant also argues that the Officer
ignored evidence of the Applicant’s ties to his adult family in Canada.
[51]
Finally, the Applicant submits that the Officer
unreasonably fettered her discretion by relying on the IAD Decision in regards
to the Applicant’s criminality and what occurred as part of the offence that
rendered him inadmissible.
[52]
The onus is on the Applicant to squarely raise
the alleged hardship issues and concerns in returning to Jamaica (Owusu v
Canada (Minister of Citizenship and Immigration), 2004 FCA 38).
[53]
No submissions were made about levels of
discrimination or country condition documentation to support what the Applicant
tries to argue should now be considered. The Officer reasonably considered the
lack of family ties, unemployment, economic concerns and the separation of the
Applicant from his children, as well as deaths on his family due to violence.
Reasonable consideration was also reflected in the Officer’s review of the
Applicant’s family ties in Canada and support for his fiancée and children.
[54]
With respect to criminality of the Applicant, I
also find that the Officer properly and reasonably considered the Applicant’s
lengthy criminal record and lack of remorse. In effect, the Applicant seeks to
have the Court reweigh the evidence before the Officer, which is not role of
the Court.
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